Suchergebnisse

"This book explores the rise of a Scottish common law from the twelfth century on despite the absence until around 1500 of a secular legal profession. Key stimuli were the activity of church courts and canon lawyers in Scotland, coupled with the example provided by neighbouring England's common law. The laity's legal consciousness arose from exposure to law by way of constant participation in legal processes in court and daily transactions. This experience enabled some to become judges, pleaders in court and transactional lawyers and lay the foundations for an emergent professional group by the end of the medieval period"--

Analyses the development of law and legal system in Scotland between c.1100 and c.1550, with a major focus on the fourteenth and fifteenth centuries. Exploring the relationship between law and society, this classic edition of Common Law and Feudal Society brings a key legal history text back to life in a popular new series, affordable for the student of Scottish legal history. The close links between the Scots and English law in the Middle Ages have long been recognised, but this classic text assesses the relevance of traditional approaches to Scottish legal history, setting the development of medieval law within the context of a society in which private lordship, exercised through courts and other less formal methods of dispute settlement, played a key role alongside royal justice. Based on extensive research, this book examines the brieves of novel dissasine, mortancestry and right, and legal remedies for the recovery of land, as well as aspects of the early history of the Scottish legal profession and the origins of the Court of Session

The subject-matter of this lecture is the fate of ideas about or from European contract law in a United Kingdom (UK) which ceased to be a Member State of the European Union (EU) on 31 January 2020 and then shortly afterwards shared the common European and indeed global experience of the coronavirus pandemic. Its main thrust is that, while in the UK Brexit has been a major setback to the idea of European contract law – indeed, European private law – the continuing pandemic provides an opportunity for Scots and English law to re-engage with the subject to find answers – or better answers – to the problems which they now face. The main substantive topics addressed are frustration of contract, equitable adjustment upon change of circumstances, and the requirements of good faith.

Abstract: This contribution compares the recognition of a general concept of unilateral promises, binding without acceptance by the promisee, in Article 2:107 of the Principles of European Contract Law (PECL) and Article II.-1:103 of the Draft Common Frame of Reference (DCFR) with the equivalent Scottish rule. The significance of this comparison is that the rule in question is significantly wider than that found in most other European legal systems, which tend to recognize only limited categories of unilateral promises or to impose a requirement of acceptance. Despite an authoritative restatement of the law by Lord President Gill in Regus (Maxim) Ltd v. Bank of Scotland plc [2013] CSIH 12, the Scottish courts have generally approached the concept in a restricted and restrictive way, although at least occasionally allowing it a role even in commercial cases. The decision of the UK Supreme Court in the Scottish appeal Royal Bank of Scotland v. Carlyle [2015] UKSC 13 poses a significant challenge to such caution, and the judges' self-imposed restrictions are also inconsistent with the DCFR's approach. On the other hand, the Scottish experience suggests that the DCFR's requirement that notice of the promissory statement must reach the promisee to make it effective except when the statement is a public declaration may, in turn, be too demanding. It is also suggested, in opposition to a suggestion by Professor Martin Hogg, that from both the DCFR and the Scottish experience the conduct of the recipient after the statement is made may be relevant to the question of whether the statement can be treated as a binding promise.

In the light of renewed interest about a second chamber for the Scottish Parliament, this paper (a revised version of one first published in 2003) discusses the reasons why such a chamber might be thought necessary, in particular protection from the 'tyranny of the majority'; the roles played by a second chamber in initiating as well as revising and reviewing legislation; and representing a territory's constituent regions. The paper next analyses how such 'second chamber functions' are currently discharged in the Scottish Parliament, suggesting that these are not yet adequate or sufficiently strong. The paper concludes by assessing the form a second chamber might take, including its size, its election/appointment, and qualifications for membership.

Abstract: The second contribution to the symposium held at Ghent focuses on the experience of Scotland as a mixed legal system. While one might expect such a system to be comparative in its approach, the author shows that there is little evidence to be found in the Courts. Referring to two previous statistics he produces his own table to show that cited foreign case law by and large stems from other Anglophone countries, notably England. He arrives at the conclusion that, with the exception of the ECHR, other foreign decisions are virtually absent from citations in Scottish Courts. After discussing some of the foreign decisions he points out that the significance of comparative law cannot be measured by the analysis of citations alone.

There is an independent Scottish legal system today because, until the Union of the English and Scottish Crowns in 1603 and the Union of the Parliaments of the two countries in 1707, Scotland was an independent sovereign state. When King James VI of Scotland became James I of England and Great Britain in 1603, there was considerable interest in the possibility of establishing a single legal system for the newly united kingdoms, while during the Cromwellian interlude of the 1650s the possibility moved some way towards actuality. But the 1707 Act of Union showed a recognition that the establishment of a single legal system and body of law for the whole of the United Kingdom was not really a practical proposition, in articles which remain the formal basis for the continuing existence and independence of the Scottish law and legal system. Article XVIII provided for the continuation of Scots law after the Union, excepting only the 'Laws concerning Regulation of Trade, Customs and … Excises', which were to 'be the same in Scotland, from and after the Union, as in England.' Change to Scots law was allowed under the Article, but in matters of 'private right' such change had to be for the 'evident utility' of the Scottish people. Only in matters of 'public right' might the aim be simply to make the law the same throughout the United Kingdom. Article XIX laid down that the principal Scottish courts, the Court of Session and the High Court of Justiciary, should 'remain in all time coming' as they were then constituted, and further provided that Scottish cases were not to be dealt with by the English courts 'in Westminster-hall' (which likewise continued to exist post-Union).